At the start of the year, nobody could have predicted that Baby Reindeer – a British drama from a creator nobody had heard of – would end up being the most significant television programme of our age. And yet, it increasingly looks like that will be the case.
Ever since a small band of online sleuths watched the show, noted that it was billed as “a true story” and attempted to track down the real-life inspiration of one of its characters, Baby Reindeer has gone supernova. In Fiona Harvey, they found a woman who not only matched the physical description of Martha, the character who stalks the lead, but whose social media output strongly resembled the character’s dialogue on the show. Appearing on Piers Morgan’s YouTube channel, Harvey threatened to sue Netflix for defamation and gross negligence.
Yesterday that came to pass. Harvey has filed a $170m (£133m) lawsuit against Netflix in California, accusing the company of defamation, intentional infliction of emotional distress, negligence, gross negligence and violations of her right of publicity. The sum includes totals for damages, “loss of enjoyment and loss of business” plus “all profits from Baby Reindeer”. Netflix has said that it intends “to defend this matter vigorously and to stand by Richard Gadd’s right to tell his story”. Whatever the verdict, the entire television industry will be playing close attention.
How the lawsuit shakes out could affect the way that television is made for the foreseeable future. The consensus seems to be that just two words could have spared Netflix this hassle. At the very start of the series, Baby Reindeer bills itself as “a true story”; a decision that seems more and more reckless as time goes on. Had someone involved in the production and distribution of the show thought to have added the words “based on” to that description, then they would have found themselves with a lot more cover.
There’s a world of difference. “Based on a true story” means that there might be a kernel of real-life inspiration there, but the writers have chosen to manipulate events for dramatic purposes. For instance, HBO’s Winning Time caused an enormous stink when it was first broadcast. A drama about the rise of the LA Lakers basketball team, it took such liberties with the truth that players and coaches loudly voiced their dissatisfaction with their portrayal. However, the disclaimer up top read: “This series is a dramatisation of certain facts and events,” which protects it. HBO offered a statement saying that it has a history of making shows that have been “drawn from actual facts and events that are fictionalised in part for dramatic purposes”, and the fuss went away.
But the only disclaimer that appears at the start of Baby Reindeer reads: “This is a true story”. You could argue that this implies that it is essentially documentary. But Baby Reindeer ends with Martha being imprisoned, while Harvey claims not to have been. The series might be full of countless similar discrepancies. And this might have all been fine, but for the bald statement that “this is a true story” – which is unhelpful to say the least.
So, in the short term, regardless of Harvey’s verdict, you can probably expect a lot more disclaimers at the start of TV shows. Even saying that a show has been inspired by real events might not be enough. Don’t be surprised if you start being presented with long tracts of texts detailing all the ways in which the source material has been fictionalised. It’ll be a massive buzzkill, but it might also be a legal necessity.
In the medium term, you can bet that anyone writing a show loosely based on their own life experience is going hell for leather to fudge the facts. Baby Reindeer might have changed Harvey’s name, but it replicated her look, accent, age, geographic location and some of her dialogue. This made her so much easier to identify. Going forward, expect writers to protect themselves by being much more careful to camouflage the source of their inspiration.
The lawsuit might even end up changing the entire direction of television. At the moment, we’re deluged by biopics about people who are still alive. In recent years we’ve had The Crown, Dopesick, The Dropout, WeCrashed, Super Pumped, Inventing Anna and countless others. For better or worse, figures in these shows could start claiming that their reputation has been harmed by the shows, and file lawsuits of their own.
In fact it’s something that’s increasingly happening. In 2022, Netflix had to settle when Queen’s Gambit prompted it to be sued by a female chess grandmaster. It is currently being sued by a Vanity Fair photo editor over her portrayal in Inventing Anna. And on Tuesday, Netflix announced that it had settled a defamation case taken up by a former Manhattan prosecutor, Linda Fairstein, after her unfavourable portrayal in the 2019 miniseries When They See Us led to her being dropped by her publishers. The settlement cost Netflix $1m. Harvey’s lawsuit might cost it millions more. So don’t be surprised if broadcasters soon decide that truth is too expensive and retreat back to the world of pure fiction.
